Expungement in the Age of the Web

This week, the New Jersey Supreme Court heard arguments in G.D. v. Bernard Kenny and the Hudson County Democratic Organization on whether a criminal conviction expunged pursuant to state law still exists for purposes of establishing a defense to a defamation claim. While the issue sounds highly theoretical, the facts leading to the civil action are an interesting study in hardball politics. An article at Law.com, Case Tests Whether Circulating News About an Expunged Conviction Is Libel , lays out the arguments before the court and summarized the alleged defamation:

G.D. worked as an aide to Sen. Brian Stack, D-Hudson, during the 2007 Senate primary. The Hudson County Democratic Organization had supported West New York Mayor Silverio Vega and retained Neighborhood Research Group Corp., a political consulting firm headed by conservative activist Richard Shaftan. He learned that in 1993, G.D. had been convicted of second-degree possession of drugs with intent to distribute and sentenced to five years in prison.

The HCDO, believing that G.D. was assisting in Stack’s campaign, sent out two flyers based on that information.

The first flyer ran, “It’s the company you keep. And the sleazy crowd Brian Stack surrounds himself with says a lot about who Stack is. Coke dealers and ex-cons. [G.D.] is also a drug dealer who went to jail for five years for selling coke near a public school.”

The second flyer said, “We all know the threat that drugs and illegal guns have in our communities. But not Brian Stack. He continues to surround himself with one shady character after another — not one but two convicted drug dealers and ex-cons.”

The flyers were sent out to about 8,000 households.

The trial court addressed claims of defamation, negligent or intentional infliction of emotional distress, invasion of privacy, and civil conspiracy when the parties filed cross-motions. The HCDO and Kenny filed a motion to dismiss, the remaining defendants filed a motion for summary judgment, and plaintiff filed a motion to bar defendants from relying on the defense of truth. It denied all these motions, and the matter was heard in the Appellate Division. In a well-written and throrough opinion, the Appellate Division reversed and remanded the case to the trial court for entry of an order dismissing plaintiff’s complaint.

The NJ Supreme Court will also consider arguments by the Electronic Privacy Information Center (EPIC), an organization that works on issues involving privacy, civil liberties, and database errors. EPIC’s amicus brief urges the Court to preserve the value of expungement and allow a privacy case to go forward arguing that “data mining companies ignore judicial determinations and attempt to make conviction records live forever,” however, “after someone has been rehabilitated, having paid the prescribed debt to society, he or she should not be penalized in perpetuity.”

EPIC has a web page on the topic of expungement which describes the four key common elements of expungement among State statutes and has sections titled “Expungement Simplified” and “State Statutes, Federal Courts, and Availability of Expungement”. For more information see Collateral Consequences of Criminal Conviction: Five-State Resource Guide compiled by Alice King for the Justice Action Center at New York Law School. In her paper, she cites an October 2006 NY Times article Expanded Criminal Records Live to Tell Tales by Adam Liptak and notes:

Expungement is becoming significantly harder to accomplish in the electronic age. Records once held only in paper form by law enforcement agencies, courts and corrections departments are now routinely digitized and sold in bulk to the private sector. Some commercial databases now contain more than 100 million criminal records. Because these databases are updated only sporadically, “expunged” records often turn up in criminal background checks ordered by employers and landlords. For the individual affected, this likely means that they will be forced to reveal at least some of the information to an inquiring party.